Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

from the huge-win dept

In a huge victory against copyright trolls, a judge has thrown out the lawsuit filed by Righthaven against Democratic Underground. This was the key case where (after lots of stalling), Righthaven eventually revealed the strategic agreement between it and Stephens Media, which basically shows the copyright assignment to Righthaven was a fraud. All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law. As we had expected, the judge relies on the Silvers vs. Sony Pictures case, which notes that you can't assign just the right to sue.

Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule
and statute on other grounds.... Section 106 of the Act defines and limits the
exclusive rights under copyright law.... While these exclusive rights may be
transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is
not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights,
transfer solely of the right to sue does not confer standing on the assignee.... One can
only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the
copyright... Further, to obtain a right to sue for past infringement, that right must be
expressly stated in the assignment.

That's the basics. As the court digs into the details, it becomes clear that the judge is monumentally not impressed by the arguments from Righthaven and Stephens Media. A couple of choice quotes:

This conclusion is flagrantly false—to the point that the claim
is disingenuous, if not outright deceitful.

The companies’ current attempt to reinterpret the plain language of
their agreement changes nothing. In reality, Righthaven actually left the transaction with nothing
more than a fabrication...

Righthaven argues that Section 15.1 of the SAA gives the Court authority
to correct any provision of the SAA that is deemed void or unenforceable to approximate the
manifest intent of the parties. The problem is that this argument requires a provision of the SAA
to be void or unenforceable. However, Righthaven’s problem is not that any provision of the SAA
is void or unenforceable but that the SAA simply does not grant Righthaven any of the exclusive
rights defined in Section 106 of the Act required for standing. Therefore, the SAA is not void or
unenforceable, it merely prevents Righthaven from obtaining standing to sue from the Assignment.
Accordingly, the Court need not and shall not amend or reinterpret the SAA to suit Righthaven’s
current desires...

Here, Righthaven
does not ask the Court to recognize an oral transfer with a late made written memorandum of the
deal, but to fundamentally rewrite the agreement between Righthaven and Stephens Media to grant
Righthaven rights that it never actually received...

Towards the end, the judge unloads on Righthaven's attempt to claim that because earlier rulings by the same court had been okay with its standing, there was some sort of precedent:

Finally, Righthaven contends that multiple courts within this district have already
determined that Righthaven has standing to bring claims for past infringement under the Silver
standard based on the plain language of the copyright assignment. At best, this argument is
disingenuous. As the undersigned issued one of the orders Righthaven cites for this argument, the
undersigned is well aware that Righthaven led the district judges of this district to believe that it
was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the
true nature of the transaction by disclosing the SAA or Stephens Media’s pecuniary interests. As
the SAA makes abundantly clear, Stephens Media retained the exclusive rights, never actually
transferring them to Righthaven regardless of Righthaven’s and Stephens Media’s current
contentions. Further, Righthaven also failed to disclose Stephens Media in its certificates of
interested parties, despite Stephens Media’s right to proceeds from these lawsuits...

As for that last point, it may open up Righthaven to a world of hurt. The judge notes that it appears Righthaven violated the law here and gives the company two weeks to explain why it shouldn't face sanctions not just for the failure to disclose in this case, but in all of its cases:

As shown in the preceding pages, the Court believes that Righthaven has made
multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will
only focus on the most factually brazen: Righthaven’s failure to disclose Stephens Media as an
interested party in Righthaven’s Certificate of Interested Parties. (Dkt. #5.) Rule 7.1-1 of the
Local Rules of Practice for the District of Nevada requires parties to disclose “all persons,
associations of persons, firms, partnerships or corporations (including parent corporations) which
have a direct, pecuniary interest in the outcome of the case.” This Local Rule requires greater
disclosure than Federal Rule 7.1, which only requires non-governmental corporate parties to
disclose parent corporations or corporations owning more than 10% of the party’s stock. Frankly,
if receiving 50% of litigation proceeds minus costs (Dkt. #79, SAA Section 5) does not create a
pecuniary interest under Local Rule 7.1-1, the Court isn’t sure what would.

Making this failure more egregious, not only did Righthaven fail to identify
Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to
disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this
District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2)
weeks from the date of this order, why it should not be sanctioned for this flagrant
misrepresentation to the Court.

I would suggest that judge Roger Hunt is not particularly pleased with Righthaven. He's also allowing Democratic Underground lawyers to seek attorneys' fees from Righthaven and Stephens Media.

This will likely kill off most of the remaining Righthaven cases in Nevada. While not all are handled by Judge Hunt, you can be quite certain that all the other judges in the court will be aware of this. The impact on the Colorado cases isn't as certain, but all of those cases are under a single judge who is equally upset at Righthaven, and reviewing similar issues. I wouldn't be surprised to see a similar end result.

Righthaven could (and might?) appeal, but it's going to be difficult to reverse this. Furthermore, in theory Righthaven could come up with a new agreement with Stephens Media and continue suing, but the court already expressed its doubts about the weak attempt by the two companies to "amend" the existing agreement, suggesting that it was just "cosmetic adjustments" that the court did not believe would change the outcome.

What may be interesting is to see if any of the dozens of folks who already settled come after Righthaven now and demand their money back... That could make for an interesting followup legal battle. All in all, this is a huge win against copyright trolling.

How does this differ...

If the entire scheme was admittedly entered into in order to
shake people down without any actual standing for suit so that they could outwrest money by way of settlement, I think more than civil sanctions may be in order.

I'm hoping the judge will at least raise the question to a DA regarding the possibility of civil charges for extortion.

Re: Ha.

Of course, he'd only do that if they dropped their attitude. Otherwise he'd just call them clueless.

That's just a guess, though. I *can* say with certitude that he's not out somewhere taking the attitude that he's completely right, because that would make him look like a fool were he ever to be proven wrong, he doesn't like it when people are 100% wrong while insisting they are 100% right. He doesn't play that game.

I could go on, but if I keep adding links I might get snared by the spam filter. Plus, it's too easy. ;)

Re: Re: Ha.

I'll admit, I was wrong about certain things on that thread. For example, you can sue for infringements that happened before you acquired the copyright (though it has to be granted in the transfer). Also, exclusive licensees do not automatically get the right to resell that licence, which I didn't know.

But the main points turned out to be pretty accurate. Honestly, I have no idea where all his "title" talk came from. Copyright mainly deals with "legal owners" and "beneficial owners." Righthaven is neither, and never was.

Re: Re:

Quote for truth

As we sit among this midnight weary, seeing the storm so dark and dreary,
The cloud that looms like clouds along the distant shore.
I was nodding, not quite napping, holding covers closer, wrap, wrap, wrapping.
Go to a keyboard, with a tap, tap, tapping, facing my chamber door.
I glanced on the internet for the Righthaven score.
I search for their stories, nothing more.

I read the stories from December, about seizures I can't quite remember...
Along with lawsuits that brought tears galore.
Such was the likes of Righthaven, even FUDBuster, who thought himself a maven,"This suing potential does not need savin'!", tapping, tapping near my chamber door."Tis the truth, Sirrah." he implored. "The truth and nothing more!"

Ah, distinctly I remember, Righthaven lawsuits in November.
Their business model was weakening, bleeding on the floor.
Eagerly they wished for tomorrow, to extend their distasteful sorrow,
intent, now intent on reaching for the door.
The storm clouds reached for the shore,
Righthaven had determination, it seemed, forever more.

But as we see it merrily true, their model of business is run through.
Their model lays skewered, impaled as if by a boar.

"Ah sirrah, you are mistaken, here you are, have more bacon,
The route you have undertaken, Lies broken like a ship on the shore.

Re: Quote for truth

I really wish the judge had deemed RightHaven's business illegal, on the same order as a "Protection Scheme". When your only business is shaking down other businesses how is that legal? Usually you have to be a government to do that.

Re: Re: Re: Re: Glyn Moody AGAIN !!!!! (the puppet master ?)

I agree with the judge about sanctioning Righthaven for misrepresenting things and about the amended agreement not having retroactive effect. However, I still think the ruling about standing is incorrect. The judge focused on the word "retain" and seemed to ignore the whole phrase which was "retain (and is hereby granted by Righthaven)." The obvious effect of that section of the SAA was that ownership changed hands. Righthaven toke ownership and then granted Stephens Media an exclusive license. The judge focused on the fact that Righthaven couldn't exercise certain rights. Well of course they can't exercise those rights. Acting as owner, they granted those rights exclusively to their licensee. The judge's analysis in this regard was thin, and frankly, incorrect. I hope Righthaven appeals this.

Re:

I've said this before...

I think you're focusing too much on form without giving any regard to substance of the agreement. Sure, the SAA states Righthaven took ownership and then licensed it back to Stephens. I don't see how this can be denied going by the bare language of the contract.

But from a practical standpoint, that language is just fluff. It's an attempt to let Righthaven sue without really taking ownership. In reality, the agreement operated to do nothing more than give Righthaven the right to sue. It's disingenuous to pretend that those clauses in the SAA gave Righthaven anything else. The judge thankfully saw through it.

Re: Quote for truth

Re: Glyn Moody AGAIN !!!!! (the puppet master ?)

It's sweet that you are unable to say anything about the substance.

Can't you educate us about copyright law? How the judge is ignorant of how copyright trolling is supposed to work? How the judiciary's purpose is to support dead business models that supplement their decreasing income with new extortion litigation threat shakedown rackets?

Re:

The key point the judge makes is that the exclusive rights are not separable from the right to sue over those exclusive rights. The judge is denying the legal viability of wholesale copyright-lawsuit-mining rights. I can't fathom how this ruling could be considered wrong.

Re:

Re:

> Where are the sanctions and fines against the
> attorneys who knowingly filed false affidavits?

Be patient. Let everything be done decently and in order.

He has given them two weeks to explain why they should not be sanctioned.

That filing should be quite the Lulz. I sure hope TD covers that filing.

Then the judge can respond to the filing, and possibly sanction the parties and/or their representation.

Ideally he will turn RightHaven into a smoking crater to serve as an example to future would be copyright trolls. In order to set proper precedent he needs to address not just the misconduct of RightHaven and its lawyers, but also the practice of copyright extortion shakedown rackets.

Re:

"Righthaven toke ownership and then granted Stephens Media an exclusive license. The judge focused on the fact that Righthaven couldn't exercise certain rights"

Bullshit. The fact that they granted (licensed) back to Stephens every single right EXCEPT the right to sue means its was a paper (ie false) transfer of copyright, and was solely a means to get around the rules. This is simply not allowed, and EVERYONE (except FUDbuster) has been saying this all along. Finally a judge agrees, and the same crowd who always say "case law" or "but a judge said so" now are suddenly silent (only 26 comments in 24 hours? really? the original postings for this got over 100 in less time, most of it "rah rah Righthaven is right!") and are saying "well, the judge is wrong." Funny how that works.

That you cant see this for what it is means either you are extremely ignorant of the basics of copyright law and assignment, or you are a mouthpiece for Righthaven. Or both.

Re: Quote for truth

Re: Re:

Sure, the SAA states Righthaven took ownership and then licensed it back to Stephens. I don't see how this can be denied going by the bare language of the contract.

That may be obvious to you and me, but the judge here didn't seem to think it was so. I really think this judge was pissed and looking for a reason to deny Righthaven standing. The poor choice of wording, "retain," gave this judge something to hang his hat on. It was some weak reasoning by the judge, and the fact that he didn't even try and explain away the "and is hereby granted by Righthaven" part is telling.

But from a practical standpoint, that language is just fluff. It's an attempt to let Righthaven sue without really taking ownership. In reality, the agreement operated to do nothing more than give Righthaven the right to sue. It's disingenuous to pretend that those clauses in the SAA gave Righthaven anything else. The judge thankfully saw through it.

I disagree. I think the SAA was what it purported to be. Ownership transferred to Righthaven and Stephens was the exclusive licensee. Other agreements were made. Of course it was for the purpose of allowing Righthaven to sue, but it did so precisely by giving Righthaven ownership. I don't think the judge saw through it, he just saw one sloppy word choice and decided to hinge his opinion on it. Of course, he had to take that word out of context to be able to do this. That's not right.

Re: Re:

I think it's wrong because the judge ignored the clear import of the phrase "retain (and is hereby granted by Righthaven)." Why didn't the judge explain the meaning of "and is hereby granted by Righthaven"? The fact is, ownership is transferable, the right to sue is transferable, and that transferee can grant an exclusive license to another, even back to his transferor. If it weren't for one sloppy word, "retain," I don't think Righthaven would have lost this ruling. Whoever put that word in the SAA should be kicking themselves. Nonetheless, the judge had to take that word out of context, and he had to blind himself to the clear meaning of the contract.

Re: Re:

I'm just stating what I believe to be the proper interpretation of that contract. I'm standing by the opinion I expressed in the past. This judge's ruling doesn't change my opinion. I think the judge got it wrong. I'm not working backwards like I think perhaps you are. I'm not starting with an opinion either way. I read the assignment and I read the SAA, and I believe that ownership transferred. I believe Righthaven has standing. I also believe that Righthaven lied to the court about Stephens Media not having a direct interest in the lawsuits, and that disgusts me. I hope they are sanctioned dearly.

Re: Re:

I'm not loyal to Righthaven. Give me a break. One judge's ruling doesn't change what I think to be the correct interpretation of their contract. If you disagree, that's fine. We're all entitled to our own opinions. I hope Righthaven gets the shit sanctioned out of them for lying to the court about Stephens not having an interest in the suits. Lying to the court is completely unacceptable. Sanctions may not even be enough. I'd like to see the bar involved. I'd like for the lawyers who lied to the court to face the possibility of having their licenses suspended or revoked. Nonetheless, I think the contract between clearly transfers ownership.

Re: Re:

I mean the only thing that could vaguely support your view is the existence of a handful of trial court precedents, but those were all entered under the shadow of the misrepresentation that you've already conceded.

Re: Re:

I'm using my mother-in-law's computer while waiting for new system to arrive in the mail. My netbook died when I dropped it onto concrete. Doh! The judge interprets things differently. To arrive at his conclusion, he had to pretend that certain things weren't said. I don't think the judge's interpretation is correct. Reasonable minds may differ. The judge thinks I'm wrong and I think he's wrong. I'm not running from anything. I stand by my interpretation.

Re: Ha.

I wonder if FUDbuster (or whatever he's calling himself these days) will come back and apologize?

I do apologize for saying mean things to you, Karl. I shouldn't let my emotions get the best of me like that. I'm trying to be better than that. I really do like you personally. I think your analysis is terrible most of the time, but that's got nothing to do with what I think about you. I'm sorry I've been such an asshole.

Re: Re: Re:

Well, seeing as how it means the same as the more elaborative "Stephens Media shall have unfettered and exclusive ability to Exploit the Stephens Media Assigned Copyrights," it's hard to imagine that "retain" was somehow just a big ol' accident.

Re: Re: Re: Re:

I think you think that people are arguing with you about the meaning of the contract. I don't think anyone here is arguing with the meaning of the contract. I don't think the judge is arguing with the meaning of the contract. He's invalidating it.

Re: Re: Re: Re: Re: Glyn Moody AGAIN !!!!! (the puppet master ?)

Re: Re: Re:

I haven't read where the judge interprets the contract any differently than you. He's not saying it doesn't say that, he's saying that what it says is a complete pretense to the opposite of what it actually does (which is not legal).

The really fun thing about the end-around tactics they've used is that it's precisely these tactics that have kept them from getting the court to amend the SAA in their favor. This because none of the backwardized terms are actually void or unenforceable such that the court could strike or amend one or more of them, rather in whole, they just render the outcome effectively meaningless as to standing. It's really kinda poetic.

Re: Re: Re: Re:

I don't know why you guys really care. I'm giving her the computer back soon, hopefully later today if the UPS man delivers. I'm not bothering to log into to all the accounts I visit while using her computer. Let's focus on the real topic at hand--the judge's ruling.

Re: Re: Re: Re:

I'll agree that it's poetic. They could have easily written the SAA so that there was no question that ownership transferred, but instead they made it more cryptic than it needed to be. Their greed is getting the best of them.

Re: Re: Re:

Nonetheless, I think the contract between clearly transfers ownership.

But, AJ, I thought the whole crux of the situation was that the right to sue is not transferable by itself under copyright law, which is what has seemed to have happen here. Hence, Righthaven suing using copyright laws is invalid, regardless of how the contract was worded.

So is it the judges that make rulings that you disagree with the ones "in the pockets of Big Content" and the ones who rule favorably on matters of concern righteous and correct. How does that work. What if the Rightshaven judge enters a ruling you disagree with, is he then back in the pocket of Big Content?

Re: Re: Re:

"I'm just stating what I believe to be the proper interpretation of that contract."

I, for one, am very thankful you've never been appointed a judge. Your lack of critical thinking skills and absolute denial of Righthaven's attempts to violate the spirit of the law willfully and to then use that standing to extort money from others is beyond reprehensible.

"I think the judge got it wrong."

Wow! Just Wow! Here let me use a phrase you may be familiar with, especially here on TD: "But the law is the law!" "If you're not happy with it then do something to change it."

Because we have two companies actually conspiring to steal money from third parties as a business model I'm wondering why they haven't all been thrown in jail yet.

Unlike the infringement claims made by RH, their own behavior is indeed CRIMINAL in nature and should have an adequate sentence applied to all those involved in the scheme.

Re:

If said arguments given for said ruling are based in the best interest of the [company/public] you have my viewpoint quite clearly here.

As upholding the law on contract rights this is a big win and that is certainty in the public's best interest.

Though I'm still wondering if anybody is going to bring up a first amendment issue on fair-use in these cases. Or have I missed that story along the line? One question I have is it really in the best interest of the public that the business, or in this case the press, has power to squelch speech in any shape or form regardless of contribution?

Re: Re: Re: Re:

The right to sue is transferable by itself, but it can't be exercised unless the underlying 106 right is transferred with it. Stephens transferred ownership of all the 106 rights to Righthaven, plus the right to sue. Righthaven then, as owner of those rights, granted Stephens an exclusive license of the 106 rights. The judge overlooked this transfer of ownership, IMO, by focusing on a single word out of context. That's partly Righthaven's fault since the word "retain" was not technically the correct word. But still, in context, it's clear to me that ownership transferred.

Re: Re: RIghthaven

And the substance of the assignment was clear enough on its face. The judge didn't even acknowledge the "and is hereby granted by Righthaven" part of the sentence he rested his opinion on. I believe it was error to pretend that part of the sentence wasn't there.

Re: RIghthaven

The court did not focus on a single word, it focused on the intent of the parties, which was to do an end-run around Silvers and the Copyright Act. The entire transaction was a sham to illegally manufacture standing. This is why the SAA was withheld from the court and Stephen Media's interest in the lawsuit was not disclosed upfront.

Re: Re: Re: Re:

Here we go with the personal attacks. I'm stating an opinion and I'm explaining why I believe what I believe. If you believe differently, state what you believe and why. The fact is, I've worked for a federal judge in the past, researching issues and giving opinions. Sometimes the judge adopted my opinions and sometimes the judge didn't. In fact, I'm applying now for a full-time position working for a judge because I love researching issues and I love the judiciary. Most of all, I love the law. Saying I lack critical thinking skills without explaining why you think that shows a lack of critical thinking skills on your part, not mine. The fact is, I'm at the top of my class (in the top 10%) because I work my ass off, reading and thinking about the law everyday. My professors think I have great critical thinking skills. The judge I worked for thinks I have great critical thinking skills. I'll take their opinions over yours.

Re: Re: RIghthaven

I think the intent of the parties was to transfer ownership to Righthaven and then have Righthaven grant to Stephens an exclusive license. That's exactly what the contract said. I simply disagree with your interpretation, and I've stated why. I don't see much reason to go back and forth over it. You think one thing, I think another. I'm OK with that.

Re: Re: Re: RIghthaven

But you conveniently ignore the fact that the sole purpose for this "transfer" was to evade the confines of Silvers and to allow for a third party to sue as a proxy plaintiff. That was never the intent of Congress.

"I think the intent of the parties was to transfer ownership to Righthaven and then have Righthaven grant to Stephens an exclusive license. That's exactly what the contract said. I simply disagree with your interpretation, and I've stated why."

Except, you're wrong. Since the ONLY right retained by RH was the right to sue, and all other rights "licensed" back, AND that the court, caselaw, and the law itself says that you CANNOT (cant believe you dont understand this, being that you are some kind of law student or something) retain JUST a right to sue absent some of the other rights, this is de facto end-run around the law, is illegal, and has no standing. Its void. The fact that you cant see this tells a lot, and I really, truly hope you do not continue in law practice, as you will cause much harm to those you represent since you cant understand even the most basic of arguments and caselaw.

Re:

I still think the ruling about standing is incorrect. The judge focused on the word "retain" and seemed to ignore the whole phrase which was "retain (and is hereby granted by Righthaven)." The obvious effect of that section of the SAA was that ownership changed hands.

I believe you are misreading the ruling. The judge is actually quite explicit in that he understand the contract, and that it's intent was to transfer solely the right to sue. The "obvious effect" was not at all that ownership changed hands, but the exact opposite.

The judge focused on the fact that Righthaven couldn't exercise certain rights.

No, he didn't. The judge properly focused on the fact that Righthaven NEVER had those rights and NEVER could exercise those rights, which made the transfer a sham.

Re:

He understands completely. As AJ, he quite happily stated that he had no qualms exploiting loopholes in the legal system to make money-- this is exactly what was attempted here. They couldn't transfer the right to sue, so they instead tried to transfer everything and 'license' back everything except the right to sue. It's underhanded and goes directly against the spirit of the law, which is why it got slapped down.

Personally, It would be better if he didn't understand the law, because in my eyes it's far worse to understand it, and then attempt to game it for personal gain. My opinion, obviously.

Re: Re: Re: Re:

Did you actually read the article? The right to sue is NOT transferable as you just claimed....

"Silvers vs. Sony Pictures case, which notes that you can't assign just the right to sue"

Copyright law and legal precedent say one thing, and yet you still claim the other, so which one is right?

I believe that Mike is misreading/mistating Silvers. The right to sue is transferable. There is no question about that. Silvers only said that in order to exercise that right, the underlying 106 right that was infringed upon must also be transferred.

Re: Re: Ha.

I do apologize for saying mean things to you, Karl. I shouldn't let my emotions get the best of me like that. I'm trying to be better than that. I really do like you personally. I think your analysis is terrible most of the time, but that's got nothing to do with what I think about you. I'm sorry I've been such an asshole.

At the very least, I think it's only fair that you don't just apologize for the assholish nature of the comments, but for insisting that Karl didn't understand what he was talking about, when it appears that the judge found the same arguments that Karl made persuasive.

You can disagree with the judge and Karl -- as you do -- but you insisted that only a "fool" who was ignorant could make such statements. I think, at the very least, you have to admit that reasonable minds might disagree there, and that Karl's analysis wasn't "foolish" it just disagreed with your own.

Amusingly, now, in this thread, you find yourself making the same statements, condemning people for insulting you while saying you are just stating an opinion. Yet, when Karl did the same, and did so with incredibly well cited and backed up arguments, you attacked him.

I think you owe him a much bigger apology than for being an asshole. I think you should admit that you were wrong in what you said about him.

Re: Re: RIghthaven

I simply think the judge got it wrong. It's not spin, it's my opinion. If you disagree, that's fine. I explained what I think and why I think it. Don't take it so personally.

I think it's only reasonable to point out that in the last thread, Karl also pointed out his opinion, in which he thought you got it wrong. And in this case, the judge agreed with Karl. And yet, you accused him of all sorts of nastyness for his opinion.

So it seems a bit rich for you to now complain about others doing the same to you.

Righthaven

Re: Re:

I believe you are misreading the ruling. The judge is actually quite explicit in that he understand the contract, and that it's intent was to transfer solely the right to sue. The "obvious effect" was not at all that ownership changed hands, but the exact opposite.

I simply interpret it differently. The contract's intent wasn't to "transfer solely the right to sue." The contract's intent was to transfer ownership to Righthaven, who in turn, and while acting as owner, granted a license to Stephens.

No, he didn't. The judge properly focused on the fact that Righthaven NEVER had those rights and NEVER could exercise those rights, which made the transfer a sham.

Again, I interpret it differently. Righthaven did have those rights. How else could they grant an exclusive license of those rights to Stephens? Only the owner of those rights could do that.

It certainly is an interesting ruling, and I really do hope they appeal to the Ninth Circuit. I'd like to see if an appellate panel agrees with the district court's reading of Silvers.

One last thing, Mike, while I'm making apologies. I'd like to apologize for being an asshole to you in the past as well. I really am trying to not let the constant personal attacks get to me. I hope you'll join me in setting a good example around here.

Re:

Except, you're wrong. Since the ONLY right retained by RH was the right to sue, and all other rights "licensed" back, AND that the court, caselaw, and the law itself says that you CANNOT (cant believe you dont understand this, being that you are some kind of law student or something) retain JUST a right to sue absent some of the other rights, this is de facto end-run around the law, is illegal, and has no standing. Its void. The fact that you cant see this tells a lot, and I really, truly hope you do not continue in law practice, as you will cause much harm to those you represent since you cant understand even the most basic of arguments and caselaw.

I've based my opinions on what I gleaned from reading tons of caselaw and secondary sources on the subject. I disagree with your interpretation of things. I've explained my arguments elsewhere, citing authorities for the positions I've taken. If I had more time today, I'd gladly go back over it, but as it is, my homework isn't going to do itself.

Re: Re: Re: Ha.

I won't apologize any further, Mike, because I still believe what I believe about his analysis in general. I'd rather not repeat what I think about it because it'd just be me being an asshole again. Your point is taken, and I thank you for expressing your honest opinion about it. I respect you for sticking up for Karl here. Kudos to Karl for having the judge agree with him. I think they're both wrong, obviously, but I'll give props where props are due.

Re: Re: Re: Re: Ha.

In all fairness, he holds you to a higher standard than he does the others. He thinks you should apologize, but he does not ask the same of the regulars who act way worse than you with alarming regularity. It seems obvious that as long as people are agreeing with him, he does not care how they act. Why the double standard, Mike?

Re: Re: Re: Re: Re: RIghthaven

You don't appear to fully comprehend the public policy behind the Silvers decision, nor the Copyright Act's intent. The underlying premise on which the 9th Circuit panel relied was that there should not be an aftermarket in causes of action for copyright infringement. It follows that you cannot evade this premise by entering into a sham assignment agreement and manufacture standing for the sole purpose of allowing a third party to file suit as the purported copyright holder.

Re: Re: Re: Re: Re:

I believe that Mike is misreading/mistating Silvers. The right to sue is transferable. There is no question about that. Silvers only said that in order to exercise that right, the underlying 106 right that was infringed upon must also be transferred

And you appear to be (deliberately?) misreading what I said: "you can't assign just the right to sue." You seem to have ignored the "just" in a weak attempt to get a dig in.

Re: Re: Re: Re: Re: Re:

And you appear to be (deliberately?) misreading what I said: "you can't assign just the right to sue." You seem to have ignored the "just" in a weak attempt to get a dig in.

As I stated above, I believe you can transfer only the right to sue. That transferee can't exercise that right unless you also transfer the underlying 106 right. Your exact statement was: "All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law." I believe that statement is inaccurate. The right to sue is a transferable right. The right to sue is often transferred. I'm not "digging in," I'm simply pointing out that I believe your statement was incorrect.

Re: Re: Re: Re: Re: Re: Re:

I think he's saying you can assign just the right to sue, but you can't excercise that right without the underlying 106 right, which is certainly an odd way to look at it.

Mike's statement made it sound like the right to sue isn't transferable under any condition. That's simply not true. His exact words were: "All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law." I believe that statement is not true.

I'm also saying that you can assign the right to sue without the other right. I read that somewhere, but I don't remember where. I believe it was in Nimmer's treatise, but I could be mistaken. Where that might come up would be if a copyright holder sues you for infringement. If you can show that that copyright holder transferred his right to sue you to another, you could avoid liability.

Re:

So is it the judges that make rulings that you disagree with the ones "in the pockets of Big Content" and the ones who rule favorably on matters of concern righteous and correct. How does that work. What if the Rightshaven judge enters a ruling you disagree with, is he then back in the pocket of Big Content?

I have never, ever, suggested that judges are in the pocket of Big Content. It's possible commenters on the site have, but despite your desires to say that I need to take responsibility for the comments of anyone online (not surprising from an industry that so hates the proper application of liability), those are not my words.

Are you really so desperate now that you have to resort to flat out lies and defamation?

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No, he did not. The judge -- properly -- noted that the overall contract made it clear that the 106 rights were never transferred. The only one taking things out of context appear to be you.

And that is where I disagree with the judge. I'm just repeating myself at this point, but I believe that the 106 rights were transferred to Righthaven, and then Righthaven granted an exclusive license of those rights back to Stephens. The judge looked at the end result--who had what once everything was done. I do not believe that is the proper way to look at it since it overlooks the fact that Stephens only had those rights as an exclusive licensee and not as an owner. The owner was Righthaven. As I've discussed in detail before, the owner who grants an exclusive license of a 106 right is still the owner of that right. The exclusive licensee is not. But, for purposes of the Copyright Act, that exclusive licensee is treated as the owner for certain purposes.

Re: Re: Re: Re: Re: Ha.

I think that's a fair assessment of the situation, and I think you for bringing it up. I may be an asshole at times, but I'm not the only one. I don't see anyone else being called out on it, much less apologizing for it.

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I hear ya. It is weird thought. I'm not sure that the ability to exercise a right is a prerequisite for the ability to contractually give that right to another. Perhaps the agreement is that I'll give you the right to sue now, and if some other condition occurs, I'll then transfer you the underlying 106 right. I dunno. It's fun to think about.

Re: Re: Re: Re: Re: Re: RIghthaven

I agree with that public policy, but I don't think it applies here since ownership changed hands. Righthaven wasn't suing as a third party. They were suing in their own right. I hope Righthaven appeals and briefs the ownership issue better than they did in this case.

Re: Re: Re: Re: RIghthaven

What matters is that they were assigned ownership of the 106 rights, ownership that they exercised by granting an exclusive license. And more importantly, ownership sufficient to give standing. That's my read.

Re: Re: Ha.

I do apologize for saying mean things to you, Karl. I shouldn't let my emotions get the best of me like that. I'm trying to be better than that. I really do like you personally. I think your analysis is terrible most of the time, but that's got nothing to do with what I think about you. I'm sorry I've been such an asshole.

I think it might be better, however, if you rethink your attitude that you know the law better than everyone else here. It's pretty obvious that you were wrong on this particular point, and it isn't the first time.

Re: Re:

Nevada's in the Ninth, and Colorado's in the Tenth, if memory serves. It'll be interesting to see if the judge in the Colorado district court reaches the same conclusion as the judge here did. I understand your argument about nominal ownership, but I think it misses the mark. The caselaw I've read makes clear that the grantor of an exclusive license is still the owner of the right licensed. I wish I had more time so I could pull up those cites again.

Re:

However, I still think the ruling about standing is incorrect.

If you want to prove the judge wrong, it's actually very easy. Simply name any of the rights, specifically granted in 106, that Righthaven was ever allowed to: (a) exercise, or (b) benefit from financially.

If you can't do (a), you're not a "legal owner." If you can't do (b), you're not a "beneficial owner." Only a party that is one (or both) of these has standing to sue for infringement.

Until you can do this, you must admit that you were wrong; and the judge (here and in Colorado), myself, and the lawyer whose opinion I posted here, are right.

Re: Re: Re: Re: Re: Ha.

In all fairness, he holds you to a higher standard than he does the others. He thinks you should apologize, but he does not ask the same of the regulars who act way worse than you with alarming regularity. It seems obvious that as long as people are agreeing with him, he does not care how they act. Why the double standard, Mike?

I have asked people on both sides of the issue who I believe say things that are improper to apologize.

Re: Re: Re: Ha.

I'd offer to buy you a beer, but I don't think we live anywhere near each other. I'll take your criticism to heart as well. Thanks. But as far as me being wrong on this point, I simply disagree for the reasons I've stated. Let's see what the court in Colorado comes up with, and let's see what the Ninth Circuit thinks assuming Righthaven appeals. I think they must appeal this, as a matter of fact, or else they've got lots of problems with all their other cases in the district, including those that have settled. I believe that typically settlements are res judicata, but if that settlement was made due to a fundamental error, it's not. I'd have to research Nevada law on the point, but I remember learning that in my contracts class under my state's law. Righthaven must be shitting their pants. Considering that it appears they lied to the court about Stephens having an interest in the lawsuits, I have no sympathy for them at this point.

Re: Re: Re: Re: Re: Re: Re: Re:

Mike's statement made it sound like the right to sue isn't transferable under any condition. That's simply not true. His exact words were: "All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law." I believe that statement is not true.

You're correct here. My wording was not clear. I meant that that, alone, is not a transferable right. Sorry (see?).

I'm also saying that you can assign the right to sue without the other right.

But that's what pretty much everyone disagrees with you on. Including the judge.

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And that is where I disagree with the judge. I'm just repeating myself at this point, but I believe that the 106 rights were transferred to Righthaven, and then Righthaven granted an exclusive license of those rights back to Stephens. The judge looked at the end result--who had what once everything was done. I do not believe that is the proper way to look at it since it overlooks the fact that Stephens only had those rights as an exclusive licensee and not as an owner. The owner was Righthaven. As I've discussed in detail before, the owner who grants an exclusive license of a 106 right is still the owner of that right. The exclusive licensee is not. But, for purposes of the Copyright Act, that exclusive licensee is treated as the owner for certain purposes

I believe that you are misinterpreting Copyright law in general here, in part because of the mistaken use of "intellectual property," such that you think copyright is property separate from the rights associated with it. It is not.

In this case, as pretty much everyone notes, Righthaven in no way was the owner of those rights. It never had any of the section 106 rights at all. It never had any ability to make use of them in anyway. And without that, you don't have the copyright, and you don't have the right to sue.

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I believe that you are misinterpreting Copyright law in general here, in part because of the mistaken use of "intellectual property," such that you think copyright is property separate from the rights associated with it. It is not.

I don't think that. I think incorporeal property means simply rights. The copyright rights are the rights. Intellectual property is just rights. Property for that matter is just rights. But I also think that ownership of copyright rights can be dismembered such that the owner of a right can grant an exclusive license of that right to another while retaining ownership of that right. I quoted the Second Circuit in the other thread we were talking about this stuff in saying just that.

In this case, as pretty much everyone notes, Righthaven in no way was the owner of those rights. It never had any of the section 106 rights at all. It never had any ability to make use of them in anyway. And without that, you don't have the copyright, and you don't have the right to sue.

And I disagree. How else could Righthaven grant an exclusive license of those rights unless they owned them in the first instance?

Re: Re: Re:

Re: Re: Re:

I'm actually interested in what case law or secondary sources supports the notion that you can sue for violation of an exclusive right that you do not have.

In short, here's my argument:

1. Stephens owned the 106 rights, including the right to sue.
2. Stephens transferred ownership of the 106 rights and the right to sue to Righthaven.
3. At that moment, Righthaven had standing to sue for past infringements.
4. Righthaven then, as owner, granted an exclusive license of the 106 rights to Stephens.
5. Righthaven did not transfer it's right to sue to Stephens.
6. Righthaven, as owner, has the right to sue for the past infringements.
7. Stephens, as exclusive licensee, has the right to sue for prospective infringements. (Righthaven does not.)
8. An exclusive licensee is the owner of the right for certain purposes of the Copyright Act, but the transferor of the right is also still the owner of the right for certain purposes of the Act.

After my classes tonight, I'll see if I can find the other thread where I laid out the argument more fully for you. I'm curious to get your take on it. I'm logging out now for real. I've already spent three hours in this thread, and I've got a quiz on fundamental implied rights tonight.

Back and forth it goes. The judge may have got it right, the judge may have gotten it wrong. It is very likely that this will be an ongoing piece of legal action for a while, as judge's ruling is obviously open to appeal. It would be shocking if there was no appeal.

Further, any judge suggesting sanctions like this in a ruling pretty much leaves themselves open for appeal. It shows perhaps that the judge has a personal opinion beyond the legal.

Finally, if the ruling went the other way, I am sure that you would be posting about appeals and how the EFF would be stepping into to protect free speech or write some blog posts or something. Don't be shocked when the other side chooses to do the same.

Re: Re: Re: Re:

Wait, you still have classes in June? Shouldn't you be done with finals yet?

At any rate, this is where I see the chain breaking:

"At that moment, Righthaven had standing to sue for past infringements."

I'm skeptical that a simultaneous acceptance of 106 rights and conferring away of 106 rights is sufficient.

"Righthaven, as owner, has the right to sue for the past infringements."

I think that once it exclusively licenses away its 106 rights, without retaining any 106 rights for itself, it loses the right to sue for violations of the 106 rights. Being an "owner" doesn't confer standing to sue for violation of 106 rights if you don't actually have those rights.

I think I was going back and forth with you in the other thread as well, making essentially the same arguments.

Re: Re: Righthaven

Karl,

I appreciate the comment. I did read the SAA and the form assignment agreement, which I analyzed in a previous post.

I think the judge got it wrong, but that's not to say I misunderstand his reasoning. My interest in this case (and IP licensing more generally) has always been more about the business model than the execution.

I am a lawyer, but that is not the perspective I use in my analysis. Confusion is in the lawyer's best interest, and confusion keeps control of the licensing process in the hands of lawyers, rather than reasonable business-people.

You're all free, of course, to bicker amongst yourselves and call me names (yes, I do take being referred to as a lawyer as an insult), but I'm going to continue to study the deployment of IP as an asset and analyze situations in that background.

Re:

"Further, any judge suggesting sanctions like this in a ruling pretty much leaves themselves open for appeal. It shows perhaps that the judge has a personal opinion beyond the legal."

Wait, what? I have never seen an appeal (much less a successful appeal) based on the claim that the judge said the appellants side maybe deserved sanctions (especially where there appears to be a legitimate basis for such statements).

Re: Re: Re: Re: Re:

Re: Righthaven

He thinks Rigthahven has issued licenses to those defendants who settled! Where he gets that from is befuddling. And he gets the concept wrong too. The theory behind the assignee's ability to sue for past infringements is so it can recover the impaired value of the asset (the exclusive rights) it purchased from the assignor. Here, Righthaven has no legitimate exclusive right to protect, except the bare right to sue. The past infringement has not harmed the value of Righaven's right to sue. To the contrary, it has enhanced the asset's value.

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"while retaining ownership of that right."

But what does that mean? How do you "own" a right you cannot exercise? If you have some right of reversion or some other interest, that's one thing, but nothing like that was the case here, from my recollection.

Re: Re: Re: Re: Re: Re: Re: Ha.

Honestly, the anonymous guy has apologised anonymously in public, surely he has eaten enough crow.
When he walks down public streets, anonymous children will point and laugh at him for the climbdown he had to, but didn't make.

Re: Re: Re: RIghthaven

C'mon, really? I'll give you credit for apologizing to Karl above, but you're just being willfully blind on this point. Reality is reality, no matter what some legal document claims.

It is abundantly clear that Stephens Media never had the slightest intention of allowing Righthaven to have anything other than a "right to sue." That's why "retain" was used. That's why S.M. had the ability to reclaim any copyright at any time for any reason. The judge clearly saw it for the sham it is.

Re: Re: Re:

The contract's intent wasn't to "transfer solely the right to sue."

Realize that the judge is not only considering the intent of the contract, but the effect of it. Even if the intent was not so, the ultimate effect of transferring ownership, reserving all the rights of ownership except the right to sue, and having the right to reassert ownership at any time has the exact same effect as though it were just a license of the right to sue.

To the law, a distinction that is not a legally effectual distinction is no distinction. I still disagree with your assertion that this wasn't intended. I believe it was, but either way your conclusion is untenable.

Re: Re: Re: Re: Re: Re: Re: Re: Ha.

Re: Re: Re: Re: Re: Re:

Sigh. If you want to disagree with me, go ahead. But people are going to have to do better than simply claim I have no critical thinking skills. I know I do, and my GPA proves it. I'm proud of my achievements. Sorry if that's not good enough for you.

Re: Re: Re: Re: Re:

Wait, you still have classes in June? Shouldn't you be done with finals yet?

Summer session. I'm knocking a couple classes out so my final year will be less harried.

At any rate, this is where I see the chain breaking:

"At that moment, Righthaven had standing to sue for past infringements."

I'm skeptical that a simultaneous acceptance of 106 rights and conferring away of 106 rights is sufficient.

I don't think the simultaneous nature of it matters. What if Righthaven granted Stephens an exclusive license a week later? I don't see how that would matter.

"Righthaven, as owner, has the right to sue for the past infringements."

I think that once it exclusively licenses away its 106 rights, without retaining any 106 rights for itself, it loses the right to sue for violations of the 106 rights. Being an "owner" doesn't confer standing to sue for violation of 106 rights if you don't actually have those rights.

My research indicates it doesn't work that way.

Let's do a hypo: Say X writes a song, publishes it, and holds the copyright. Y infringes on that copyright by violating the reproduction right. After that infringement takes place, X grants an exclusive license of the reproduction right to Z. X does not transfer the accreted right to sue to Z. X would still have standing to bring suit for Y's infringement notwithstanding the fact that after the infringement took place X granted Z an exclusive license of that right.

If you have authority that says otherwise, I'd love to see it.

I think I was going back and forth with you in the other thread as well, making essentially the same arguments.

Re: Re: Re: Re: Re: Re: RIghthaven

Re: Re: Re: Re: Re: Re: Re: Re:

I think you've already heard it clarified* (God help me if I'm confusing AC's again) elsewhere that the issue is that the right to sue and the exclusive rights are not severable for licensing. The judge basically says exactly that.

*If not you're more than welcome to search it out and see what I said to someone else.

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When someone grants an exclusive license of a 106 right to another, the grantor is still the owner of that right. They can't exercise it because they've given that right to the grantee, but they still own it.

From the Second Circuit:

Under Section 101's definition, “an exclusive licensee may be regarded as the copyright owner of the rights thus licensed.” See 2 Nimmer § 7.16[B][2], at 7-165 n. 105.4 (emphasis added). Being “regarded” as an owner and actually being an owner are, of course, two separate things. While it is perhaps unfortunate that the Act's drafters chose to call owners of copyrights and owners of exclusive rights by the same name, we think that Section 101's definition reflects the fact that exclusive licensees are treated as copyright owners for the purpose of protection and remedy pursuant to § 201(d)(2). In other words, Condé Nast would stand in Morris's shoes with respect to infringement of the publication rights it exclusively licensed-and, as pointed out in the above quote from Nimmer, only for that particular right. Morris, in contrast, would have standing as the owner of the copyright to bring an action for infringement of any of the rights comprised therein.

Indeed, the construction of § 201(d)(2) itself mandates the conclusion that an exclusive licensee is not a copyright owner. The subsection states that “[t]he owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.” 17 U.S.C. § 201(d)(2). As analyzed by Nimmer: “The copyright owner” in this context must refer to the licensor, not the licensee, notwithstanding the definition in 17 U.S.C. § 101 whereby the “ ‘copyright owner,’ with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.” If “the copyright owner” in this context referred to the licensee, the sentence would be tautological. That is, it would mean: “The owner of any particular exclusive right is entitled, to the extent of that right, to all the protections and remedies accorded to [the owner of such particular exclusive right].” 3 Nimmer § 10.02[C][2], at 10-29 n. 52. Subsection 201(d)(2) thus draws a distinction between a copyright owner and an exclusive licensee that precludes the argument for “divisibility of copyright ownership” urged by Morris.

Based on our understanding of the above provisions, we conclude that Section 101 cannot be read to mean that an owner of an exclusive right is also, thereby, an owner of the underlying copyright.

Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re:

"And that is where I disagree with the judge. I'm just repeating myself at this point, but I believe that the 106 rights were transferred to Righthaven, and then Righthaven granted an exclusive license of those rights back to Stephens."

Listen carefully toolbag.

transferring ALL rights EXCEPT the right to sue IS NOT A PROPER TRANSFER OF RIGHTS ACCORDING TO 106.

EVERYONE knows this except you.

The Law says so.

Case law says so.

The judge in this case says so.

The little old lady down the hall from me in 3b frickin says so.

You can state you "I disagree" OPINION all you want,but the fact is, YOU ARE WRONG.

Please, please, for the benefit of people in need of real legal help, get OUT of the law practice.

Re: Re: Re: Re:

"5. Righthaven did not transfer it's right to sue to Stephens."

Once again, with feeling:

THIS IS THE ILLEGAL PART

They

CAN

NOT

retain JUST The right to sue. They must ALSO have at least some of the other rights. You cant just get around this by calling it a "license" and say "its ok now!" This has been shown REPEATEDLY to you.

Re: Re: Re: Righthaven

Re: Re: Re: Re: Righthaven

In your classes have they yet covered the doctrine of prudential standing? Even if Righthaven can show Article III standing, the courts can impose prudential limitations because the Copyright Act was never intended to protect the interests of copyright trolls.

Re: Re: Re: Re: Re: Righthaven

We talked about it a bit in my Con Law class. I remember a First Amendment example and a prohibition against asserting general grievances. We didn't really go any deeper than that. It doesn't seem applicable here though since the judge didn't even find Article III standing.

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Question (potentially dumb, but IANAL): Is there such a thing as a 'right to sue'? As it isn't mentioned as one of the exclusive rights of 106, and near as I can tell, isn't mentioned elsewhere in the copyright law (or else no one's brought it up)... Does that mean it doesn't actually exist?

This seems to be the most likely reasoning to me: "Transferring all rights except the right to sue is the same as transferring all rights, as the right to sue doesn't exist. You can only have standing to sue, by owning one of the 106 rights. If you exclusively license all 106 rights, then you can no longer exercise those rights, ergo you do not have standing to sue."

If there is a 'right to sue', could you please point out which section has it? (obviously it isn't 106)

Re: Re: Re: Re: Re: Re: Righthaven

That is why I said "even if" there is Article III standing...

The point being that just because they manufactured standing to work within the confines of Silvers, it doesn't automatically follow that the court has no discretion to deny standing or that this ruling will be reversed on appeal. Here, what is of greater import is public policy and Congress' intent.

Re: Re: Re:

We've had this conversation before. Righthaven owned all of the 106 rights, which is precisely why they could then grant an exclusive license of those rights to Stephens.

The problem is, you can't be granted "ownership" of any of the rights in 106, without being granted either the ability "to do [or] to authorize" those rights (legal ownership), or a "beneficial" (i.e. economic) interest in the exercising of those rights (beneficial ownership). Righthaven had neither. They are not, and were never, an owner of those rights.

At the very least, not for the purposes of bringing a lawsuit. Only "the legal or beneficial owner of an exclusive right" is entitled "to institute an action for any infringement of that particular right." That's the exact wording of 17 501(b).

Furthermore, how could this ruling possibly be a bad thing? The purpose of copyright law isn't to fight infringement. Generally, its purpose is the dissemination of expression to the public. One specific purpose is to encourage licensing.

Licensing the content from Righthaven was never possible. Why on Earth should they have standing to sue? Granting them that ability goes against the very intent of copyright law. Copyright is supposed to prevent lawsuits like this, not encourage them.

Re: Re: Righthaven

The theory behind the assignee's ability to sue for past infringements is so it can recover the impaired value of the asset (the exclusive rights) it purchased from the assignor.

This is actually a very good point, and one I hadn't considered. If a party no longer has any legal or beneficial interest in the copyright, why should they be entitled to sue for past infringements? How could those past infringements possibly cause them any harm? What possible justification could there be for allowing them to retain that entitlement?

Re: Re: Re: Re: Re: Re: Re: Righthaven

In other words the alleged injury is not within the zone of interests that Congress has sought to protect through the Copyright Act. The intent was to protect the interests of legitimate holders of exclusive rights, rather than giving rise to an after market for accrued causes of action. As such, when standing has been manufactured, the courts can create prudential barriers.

Re: Re: Re: Righthaven

I appreciate the comment. I did read the SAA and the form assignment agreement, which I analyzed in a previous post.

I did find that previous post, and just read it. I still find it hard to believe that you read the same document I did.

You brush over the most important part of the SAA with a single line: "Further, section 7.2 contains an exclusive license for Stephens Media to continue to use and exploit the work."

The exact word in the SAA was "retain." And Stephens didn't retain just any sort of use or exploitation, but use or exploitation "for any lawful purpose whatsoever."

Furthermore, there's this: "Despite any such Copyright Assignment [...] Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery."

In fact, nothing in the agreement even considers any use of the copyrights, other than the right to sue. Not a single line about licensing or royalties, other than the one I just quoted. It's all lawsuits, lawsuits, and more lawsuits.

It is brazenly obvious that Stephens never intended to transfer any 106 rights to Righthaven. The only thing they intended was to create a lawsuit factory. That's exactly the opposite of what copyright (and patents) is supposed to achieve.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

There you go. The exclusive licensee is not the owner. His licensor is.

That was from the original ruling. You should also read 283 F.3d 502,a clarification of that ruling by the same court, talking about exactly this issue:

In saying that "an owner of a particular right -- as opposed to the copyright itself -- would not be a copyright owner," Morris v. Business Concepts, Inc., 259 F.3d 65, 69 (2d Cir. 2001), we relied upon the great copyright treatise, 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 0.02[C][2], at 10-28 (2000):

[T]here is never more than a single copyright in a work, notwithstanding the author's exclusive license of certain rights.

While Nimmer is supported by at least one other treatise, Boorstyn on Copyright, others are not so clear or perhaps are even contrary.

We recognize that the language of Section 101 itself, and of the Supreme Court in the recent case New York Times Co., Inc. v. Tasini, 121 S. Ct. 2381 (2001), casts serious doubt upon the question whether there may be only "a single copyright in a work." The statute, as pointed out in footnote 2, supra, states that a "'[c]opyright owner,' with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right." [n3] 17 U.S.C. 101 (2001). And the Supreme Court, as part of its approach to the collective work problem, said that "The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete 'exclusive rights,' 17 U.S.C. 106 (1994 ed. and Supp. V), each of which 'may be transferred . . . and owned separately.' 201(d)(2)." Tasini, 121 S. Ct. at 2388-89 (footnote omitted).

As a result, the part you're quoting was actually removed from the decision.

Re: Re: Re: Re: Re:

I get it, you have great critical thinking skills and by your own admission you act like an asshole. Without trying to be funny, it sounds like you have a great future in law.

However, I think this is exactly what's wrong with the way much law is practiced today. You are taking a "plain reading" of the contract and coming to your conclusion. That's great, but try applying those critical thinking skills you are so proud of to ask yourself if the plain meaning of the words will always provide the proper outcome.

The judge and everyone here sees past the plain words in the SAA and realizes that RH and SM are trying to pull a fast one to get around what the law was intended to do.

The plain reading you are doing is simply ignoring what is clearly the plain intent of the law. But that doesn't matter to you. You (like RH) want to find some way to make, or at least allow, the law work in a way it wasn't intended. It's this constant pushing of the envelope that distorts the law into a grotesque figure that the public finds reprehensible, and makes lawyers the hated figures they are.

It's one thing to be logical and critical, it's quite another to have wisdom and experience. That we hope is one difference between lawyers and judges.

Re: Re: Re: Re:

The problem is, you can't be granted "ownership" of any of the rights in 106, without being granted either the ability "to do [or] to authorize" those rights (legal ownership), or a "beneficial" (i.e. economic) interest in the exercising of those rights (beneficial ownership). Righthaven had neither. They are not, and were never, an owner of those rights.

Stephens assigned the copyright rights to Righthaven. That gave Righthaven ownership. That made them the legal owner. Then, acting as owner, Righthaven granted an exclusive license to Stephens. I don't really understand the difficulty with this.

At the very least, not for the purposes of bringing a lawsuit. Only "the legal or beneficial owner of an exclusive right" is entitled "to institute an action for any infringement of that particular right." That's the exact wording of 17 501(b).

And the owner of a copyright right is the legal owner. An assignee of a copyright right and the accrued right to sue has standing to bring a suit for infringement. This is settled law. See, e.g., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971 (2d Cir.1991) (allowing plaintiff to bring suit for copyright infringement that had occurred prior to plaintiff's owning any copyright interest where plaintiff was assigned the right to accrued causes of action).

Furthermore, how could this ruling possibly be a bad thing? The purpose of copyright law isn't to fight infringement. Generally, its purpose is the dissemination of expression to the public. One specific purpose is to encourage licensing.

And the very reason that the accrued right to sue is transferable is because it comports with the policy reasons behind copyrights.

From the Fifth Circuit:

By express language the assignments cover the accrued causes of action for prior infringement. As an assignee of the causes of action for infringement damages, past, present and future, Prather has the right to maintain the action under 17 U.S.C.A. § 101 et seq. for infringement. There is no public policy against such assignments and under F.R.Civ.P. 17 such assignee of all choses in action for infringement, whether a ‘proprietor’ or not, has standing to sue and the court has effective power to avoid altogether the risk of double suit or double recovery.

Licensing the content from Righthaven was never possible. Why on Earth should they have standing to sue? Granting them that ability goes against the very intent of copyright law. Copyright is supposed to prevent lawsuits like this, not encourage them.

Not only was it possible, it was the first thing Righthaven did once it had ownership of the rights. Again, the transferability of rights comports with the goals of intellectual property laws. That's why such rights are transferable.

I don't really understand your arguments. Do you agree that copyright rights, including accrued rights to sue, are transferable?

Footnote 1 from the Silvers case is helpful:

This holding makes perfect sense, as it is consistent with the Act and with the constitutional purpose of encouraging authors and inventors by creating a limited monopoly on their works and inventions. When one acquires a copyright that has been infringed, one is acquiring a copyright whose value has been impaired. Consequently, to receive maximum value for the impaired copyright, one must also convey the right to recover the value of the impairment by instituting a copyright action. Of course, in this sort of commercial transaction the ultimate payment would be calculated minus the costs of suit.

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I think you mean Section 501. But yes, the Copyright Act provides for a right to sue for infringement. Otherwise, there would never be any infringement suits. The right to sue is a property, specifically, it is intangible personal property. It is well established under common law that rights are transferable.

(1) An assignment of a right is a manifestation of the assignor's intention to transfer it by virtue of which the assignor's right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance.

(2) A contractual right can be assigned unless

(a) the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or materially reduce its value to him, or

(b) the assignment is forbidden by statute or is otherwise inoperative on grounds of public policy, or

(c) assignment is validly precluded by contract.

Restatement (Second) of Contracts § 317 (1981).

The assignee of a copyright right "stands in the shoes" of his assignor. See T.B. Harms & Francis, Day & Hunter v. Stern, 231 F. 645, 647 (2d Cir.1916) (holding that plaintiffs, as assignees of composer's rights under the contract, “stand in [the] shoes” of the assignor and could assert the defense of lack of mutuality of contract).

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I don't have a dog is this fight. I suspect "Payback Time" does, since he seems to take this all really personally. I don't care if Righthaven has standing or doesn't.

Copyright law allows for assignments and licenses. It also allows for the transfer of the right to sue. I don't really see how assigning a copyright, granting a license, or transferring the right to sue is pulling a fast one and trying to get around what the law was intended to do.

I think you're working backwards, as I suspect most people who've voiced an opinion on the matter are doing: Anything that helps Righthaven must be wrong, and anything that hurts them must be right. I don't look at it that way. I'm trying to be objective about it. If my objective analysis was that they didn't have standing, I'd say that. But that's not what I think.

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Here's another little detail you may have missed: If Righthaven decides not to sue anyone within 60 days, the copyrights automatically "revert" back to Stephens Media. (Sec. 3.3)

There is no way anyone should view this as a legitimate copyright transfer. It's selling lawsuits, plain and simple.

So what? Where does it say that if there's a reversionary right, it's not a legitimate copyright transfer? Nowhere. You're simply saying what you think the law should be, not what it actually is. That's my problem with much of your analysis.

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Sigh. You can't help but spew hatred at anyone who disagrees with you, can you?

transferring ALL rights EXCEPT the right to sue IS NOT A PROPER TRANSFER OF RIGHTS ACCORDING TO 106.

That is patently false. A transferor may transfer any and all of the 106 rights to his transferee while keeping the accrued right to sue for himself. In fact, if the transferor does not explicitly grant the transferee the accrued right to sue, it remains with the transferor.

From the Ninth Circuit in Silvers:

It has long been recognized that assignment of the copyright does not automatically include assignment of accrued causes of action for earlier infringements of the copyright. See Prather, 410 F.2d at 700 (“ ‘a mere assignment of a copyright does not itself transfer to the assignee any cause of action for infringements that occurred prior to the assignment. Unless the assignment of copyright contains language explicitly transferring causes of action for prior infringements, the assignee cannot maintain a suit for infringements which happened before the effective date of the assignment.’ ”) (internal citations omitted).

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Sigh. It's hard to take you seriously when you are so abrasive. Do people generally take you seriously?

The issue isn't whether they can retain the right to sue. It's clear from my last post to you that they can. In fact, the presumption is that absent an explicit contract otherwise, the transferor does retain this right. The issue is whether they can then exercise this right once they've transferred the underlying exclusive right to another. I'm aware of no authority that says they can't. If you can point me to such authority, given your clear superior knowledge of this subject, then please do.

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Beware reflexive ad-hominems.

The "right to sue" is nothing more than elaboration of the general definition of a right itself. A right is: that which, when wronged, demands a remedy. The standing for suit on the remedy proceeds DIRECTLY from the right. There is no intermediary station between right and remedy where the two may uncouple and one party holds a right and the other holds only the right to have remedy on that right.

To say you have transferred the right to sue without transferring the right for which remedy is sued is to say nothing at all. The law does nothing in vain, fraud is not purged by circuitry, and being right about right does not make a judge wrong.

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There may certainly be a copyright transfer with a reversionary right, but it can hardly be a transfer *of ownership* with a reversionary right, especially with a "can at anytime..." brand of reversionary right, and MOST especially if that ownership, apart from any and all exclusive rights under that ownership is the basis of standing for suit.

I might as easily sell you a house with a reversionary clause so as to avoid the hassles of eviction suits and quiet enjoyment and all that other yucky stuff that comes with renting.

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Right. That brings up an interesting debate between Nimmer and Patry, but it's not really relevant here

Am I missing something here? You point to a specific ruling, insisting that it proves your argument correct. Karl then points to a ruling in a rehearing of that same case in which they clarify what they meant, admit that they got the very part you quoted wrong and say that they're removing the part of the earlier decision that you relied on... and your response is "it's not really relevant here"?

How is it possibly not relevant? It says that the very thing you're relying on has been removed from that ruling.

Righthaven

That is patently false. A transferor may transfer any and all of the 106 rights to his transferee while keeping the accrued right to sue for himself. In fact, if the transferor does not explicitly grant the transferee the accrued right to sue, it remains with the transferor.

That is assuming the infringement had occurred while the transferor was the holder of an exclusive right and the suit was brought prior to the assignment of that right to another party. This would be consistent with the observation in Silvers that "one who owns no exclusive right in a copyright may not sue for infringement."(Citing Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir.1982)).

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"Copyright law allows for assignments and licenses. It also allows for the transfer of the right to sue. I don't really see how assigning a copyright, granting a license, or transferring the right to sue is pulling a fast one and trying to get around what the law was intended to do."

Really? All the praise from your professors about your critical thinking skills and you can't see how RH and SM were trying to avoid running into the limits that Congress set up by coming up with a novel way to transfer those rights? Really?

And all the other points about constitutional intent of copyright, prudential standing, etc. don't add anything to that critical thought? Sigh. Done. I stand by my previous statement.

Righthaven

Noticed how he is sidestepping the prudential standing argument? He is totally oblivious to the rationale behind the Silvers decision and instead focuses on the technical language of the SAA, as if it exists in a vacuum.

Re: Righthaven

I said that if the judge had said something along those lines, I would have given it more weight, i.e., I would think it was better than the ruling we got. As far as making a definitive statement about your argument, I can't. I told you I only know a very little about that. I'd have to do research on the point to have an educated opinion.

Tell me this Payback Time. Why do you take this all so personally? I've been totally honest about where I'm coming from. When will you reciprocate? What is your connection to this? It's seems like you have a vested interest.

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I know that when X grants Y a copyright, the presumption is that X did not transfer to Y the accrued right to sue. Therefore, by default in such a grant, X would hold the right to sue and Y would hold the underlying right. Nothing says that ownership of the two cannot be by two separate parties. If you have authority otherwise, please do share.

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In my state, ownership transfers upon the perfection of a sale with a reversionary right. It's just a sale subject to a resolutory condition, meaning it terminates upon the happening of a condition. I don't know how it works elsewhere. There is a published copyright case where the agreement had a reversionary right. I remember the court didn't think much of it. All that matters is whether the right has been exercised. I don't remember the case name of the top of my head.

Re: Re: Righthaven

This should take you less than 30 minutes to research. It makes no difference how the judge arrived at his decision because you can reach the same decision with the prudential standing argument. At the end of the day Silvers prohibits trading in copyright infringement causes of action and this is precisely what SM and RH have attempted to pull off with the SAA. It is axiomatic they knew it was illegal which is why SM's pecuniary interest in the lawsuits was hidden from the court.

As to my personal motives, I have a hatred for scam artists and extortionists. And there is something about Gibson's face that makes me want to vomit. I think it is his nervous smirk.

They received ALL of the fundamental rights; which gave them the right to sue for infringment; yet immediately transfered those rights back to Stephens.
It is expresslly these rights that would give them the rights to sue, but they do not have control of said rights ( since we all agree they "assigned" them to Stephens).
The issue in its simplest.
< If they have the rights to re-produce, for gain, the copyrighted materials; then they have a right to sue for possible lost revenues due to copyright infringment.>
But from my understanding of the case; which is very limited; they only controlled the rights I stated until they granted them exclusively to Stephens, in the same contract.
Only Stephens has a right to sue to protect the rights they were granted.
I am not saying we should throw out copyright lawsuits, only that if Stephens needed help litigating their rights, they should have hired lawyers.
Lawyers would be more knowledgable about the law then Righthaven or the contributers to this discussion seem to be.

Re: Re: Re: Righthaven

Answer me this. If Stephens had assigned the copyrights and accrued causes of action to Righthaven, and then Righthaven had granted an exclusive license to some other third party, would you have a problem saying that Righthaven has standing to sue for past infringements?

If not, then why does your answer change when the exclusive license is to Stephens?

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If the transfer was effectuated pursuant to arms length negotiation between the parties, Righthaven had paid the market value for the copyright rights, and the value of those exclusive rights had become impaired by the alleged act of infringement, then Righthaven could show injury to establish Article III standing.

Here, though, Righthaven cannot show how it has been injured. What is the injury? The rights were purchased only after discovery of an infringement and for the sole purpose of filing suit. There was no other value in the transfer. Infringement actually enhanced the asset's value to Righthaven. Without infringement there would have been no transfer.

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I think you mean Section 501. But yes, the Copyright Act provides for a right to sue for infringement.

I do mean 501, sorry. But yes, the word that Title 17 uses is "entitled."

And you're still missing the point. The ability to sue is not a right in and of itself, that is transferable absent any other interest in the property. You must have an underlying property right in order to sue.

This is because lawsuits seek to redress harm that is done to the one who has interest in the property. If you do not have interest in the property, you are not harmed. You cannot seek redress of something that does not harm you in any case.

Re: Re: Re: Re: Re: Righthaven

Righthaven doesn't have to be injured though, right? They are standing in the shoes of their assignor, Stephens. Whenever someone transfers their right to sue to another with the underlying right, that transferee has standing even though the infringement took place before they had an interest. What's the expression? Nunc pro tunc?

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Copyright infringement is a tort, not a contractual liability that you can freely trade in the open market. It is not a negotiable instrument. The premise behind the transfer of the right to sue is that the copyright right has become impaired and the transferee has become injured as a result of the infringement.

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Stephens assigned the copyright rights to Righthaven. That gave Righthaven ownership. That made them the legal owner. Then, acting as owner, Righthaven granted an exclusive license to Stephens.

Even if this was a correct summary of the contract, then at that point, Righthaven ceased to become the legal owner of the rights that they licensed.

But this is not a correct summary of the contract. You're completely ignoring this:

Despite any such Copyright Assignment [...] Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.

This statement makes it absolutely clear that even an assignment of the copyright could not grant them the "right or license to Exploit or participate in the receipt of royalties from the Exploitation" of the copyright.

They never had any 106 rights to "license" to Stephens in the first place.

And the owner of a copyright right is the legal owner.

A legal owner is one who has "the exclusive rights to do and to authorize" any of the rights in 106. A beneficial owner is one who benefits materially from the excercising or authorization of those rights. There is no other form of copyright ownership. If you are not the legal owner, nor the beneifical owner, you are not an owner.

And the very reason that the accrued right to sue is transferable is because it comports with the policy reasons behind copyrights.

The policy reason behind transferring the accrued right to sue, is that past infringements may harm the property interest in the present. It may interfere in the future grant of licenses, for example. I'll repeat your quote from Silvers:

"When one acquires a copyright that has been infringed, one is acquiring a copyright whose value has been impaired. Consequently, to receive maximum value for the impaired copyright, one must also convey the right to recover the value of the impairment by instituting a copyright action."

None of that applies here, since Righthaven, by contract, had no property interest in the value of the copyrights. If their value was impaired, Righthaven was not negatively effected in any way, shape, or form.

Not only was it possible, it was the first thing Righthaven did once it had ownership of the rights.

In case it wasn't clear, I meant licensing to the defendants. Righthaven could not, and cannot, grant a license to any of the defendants they are suing; and they can not, and never could, benefit materially from the granting of such licenses to the defendants.

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Prather v. Neva Paperbacks, Inc., 410 F.2d 698, 700 (5th Cir. 1969)

Just as an aside: The laws about copyright ownership changed completely under the Copyright Act of 1976. Prior to that, there was one single copyright owner (the "proprietor"), much as there is in patent law today. Ownership could not be subdivided; it was transferred via assignment in toto, or not at all. Obviously, that's not true now.

Case law that existed prior to 1976 should be viewed as inapplicable, at least on this specific point.

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I'd say that is quite relevant here.

The Second Circuit language you quoted was heavily dependent on the notion that there is "the copyright" that is separate from the 106 rights, so you can "own the copyright" while having exclusively licensed away all the 106 rights.

The later clarification basically says "don't rely on that language anymore."

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"but that magic moment was all it takes."

Not sure about that. I think that, even if the magic language had been better drafted, a court might, consistent with Silvers, decline to give effect to "sham" transfers that are simply intended to assign a right to sue.

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"Let's do a hypo: Say X writes a song, publishes it, and holds the copyright. Y infringes on that copyright by violating the reproduction right. After that infringement takes place, X grants an exclusive license of the reproduction right to Z. X does not transfer the accreted right to sue to Z. X would still have standing to bring suit for Y's infringement notwithstanding the fact that after the infringement took place X granted Z an exclusive license of that right."

I believe you're right about that (though I don't have any particular case law in mind).

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What is really being said here, as far as any neutral or opposed readers are concerned is that you have lost the argument again and again simply ignore that and wish to continue.

Feel free, carry on, but that is a very quick way to make yourself an irrelevance to anyone.
Nothing will change your mind, you might as well be arguing about a young earth, creationism, alien abductions, or faked moon landings.

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Sorry, it was really late.

Perhaps I should have said the terms of the SAA can hardly serve to establish a distinction between license and ownership for the purpose of satisfying the limitations set forth in Silvers if there is an "at any time" reversionary right.

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The simple answer to Mike's question is that issue has nothing to do with Righthaven's standing in this case. It's a tangential issue. One that I regret bringing up because it's taking the focus off the real issues.

What I would really like to know from Mike is why I'm held to an incredibly high standard while others who act way worse than me are held to no standard. The obvious answer is that Mike doesn't care what people do or how they act as long as they agree with Mike. But someone like me who disagrees with him is put under a microscope. The fact is, many regular posters here act like complete assholes to me, and Mike never says a word. The double standard is obvious. And sad.

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And I must point out the double standard you're applying to me. I've been on this board for 14 months. I go to great lengths to explain myself and to back up my arguments. More so than most, if not all, other posters. But as soon as I say, "I'll answer your question when you answer mine," you just assume that I'm completely defeated and I couldn't possibly have an answer. It's ridiculous.

How many thousands of times have I called someone out on something and they run away and never address the issue? Too many to count. Heck, I've called out Mike probably a hundred times and he just disappears with no explanation. But are you there demanding that they answer the question? No. It's really, really, really ridiculous.

The techdirt theme seems to be that if someone says something you like, they are of course correct, no matter if they don't back up anything that they're saying. But if someone says something you don't like, that person must prove every last detail beyond a reasonable doubt. It's just stupid.

I've proved myself over and over and over, but you give me zero credibility. Sorry to say it, AC, but the lack of credibility is yours, not mine.

I doubt Mike will come back and explain or even admit this incredible double standard. He's all too ready to provide links to anywhere where I've been an ass, but he never offers to provide links for where others have been ten times worse. And you know examples of that are a thousand-fold more easy to find.

Can you guys really not stand it when someone believes something different than you? It's really sad that a simple dissenting opinion threatens you so.

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But as long as only one party has the right to sue for the infringement, the defendant isn't prejudiced. I don't see how this goes against the policy of allowing choses in action to be transferred. Besides, Righthaven owns the right and is suing for the impairment of that right. That Righthaven subsequently licensed that right is irrelevant.

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I've already stated that I disagree. Righthaven can't exploit the work because of the exclusive license they granted to Stephens. Righthaven is suing for the impairment of the asset. That comports with the goals of copyright law. It matters not if Righthaven was negatively affected. They are standing in the shoes of their assignor Stephens. It matters not if Righthaven can grant a license to the defendants. Ability to grant a license to the defendant is not a prerequisite for filing suit. They can sue to recover for the infringement of the asset that they own. That's enough.

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It's irrelevant because we're talking about the fact that an owner of a right and the accrued right to sue can bring suit for past infringements, even if that owner has subsequently licensed away the right. Whether or not that owner-licensor can sue for later infringements is not an issue here.

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I think it's part of what's happening here. Break up the SAA into two parts: one where Stephens assigns the copyrights and right to sue to Righthaven, and the other one where Righthaven grants Stephens an exclusive license. Righthaven is X, Stephens is Z, and the defendant is Y.

Re: Re: Re: Re: Re: Re: Re: Ha.

I really hope that you aren't including RD in the list of people being mean to you, because I don't think anyone actually listens to him.

Regardless, the issue is that you appear to be purposefully relying upon an earlier, and since revised, ruling, and when that is pointed out, you attempt a topic change. This does not look good for your arguments.

(Also, yeesh. Hope you don't play any competitive online games, because anything here would hardly warrant being called a warmup for some of those, ahem, 'discussions'...)

Re: Re: Re: Re: Re: Re: Re: Re: Ha.

It's an issue where one school thinks one way and another school thinks another way, and it's irrelevant to the issue of Righthaven's standing. I know that there is a school of people that disagree. I'm sorry I brought it up. I'm changing the topic because it's off-topic. I side with Nimmer in that debate. It doesn't mean I'm wrong, and it doesn't mean I'm right.

Look, I'm on lots of boards, and nowhere do I get constantly abused like I do here. Mike could set the tone and set a good example, but he doesn't. I run my own message board with many active users. Never does anyone treat people like they do here. Why? Because I set an example and I won't stand for it. I don't think I've moderated a post there in years. I haven't needed to. It makes no sense to me the way I'm treated here. I've been put down and called everything under the sun. Sometimes I react badly. I'm only human. But at least I apologize for my bad behavior.

Re: Righthaven

That is assuming the infringement had occurred while the transferor was the holder of an exclusive right and the suit was brought prior to the assignment of that right to another party. This would be consistent with the observation in Silvers that "one who owns no exclusive right in a copyright may not sue for infringement."(Citing Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir.1982)).

Why would suit have to be brought prior to the assignment? The rights can be transferred even if no suit has been brought.

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Right off the bat in this case, X didn't hold the copyright when it was (allegedly) infringed. Z did. Z then transferred copyrights to X, on the express conditions that Z could reclaim the copyright at any time they desired, and in (some number) days the copyrights would automatically revert back to Z.

The argument is that this sort of 'transfer' isn't a transfer at all, but instead smells of someone trying to get around Silvers. Why else go through this song and dance?

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First of all, I want to ask you why when I apologize you demand an even further apology from me, but when other people treat me like shit in this very thread, you say nothing. Why the double standard?

I'm not asking you to apologize for being an asshole to others. Similarly, I have not asked anyone to apologize for being an asshole to you. Frankly, I don't think that's my job.

I'm focused on the core of the issues, and I felt that you owed Karl a specific apology not because you were an asshole, but because you insisted that he was so far out of his depths that no one who possibly understood this stuff could agree with him.

Constructive criticism

When you first came on the boards here, I quite recall that you had a very childish demeanor. You would argue your points and if anyone tried to say "this is wrong because of X", you would use your "LOL" as a quick dismissal. Your attitude is more stand-offish and off putting, in the sense that if someone doesn't agree with every single detail of yours, you would throw a very childish tantrum, becoming quite accusatory for no reason other than you wanted to be heard.

You've grown up a lot since those times, but I still think you bring a lot of the unnecessary woes upon yourself. I recall when one of the people answered a question about how Thomas Jefferson wasn't a huge fan of copyright law, the ending really set you off to that anonymous' well thought out post. Out of all of it, you spun it into a "poor me" tale instead of ignoring that and discussing the merits of what the post had.

That was a bad mistake on your part. You still tend to dig into your views and even though you don't agree with Karl, it's rather frustrating to others around here when you want to dismiss aspects of a case or look into small minutiae details that seem largely irrelevant to what's actually going on.

You still have a ways to go. But it's noted that some of it comes to how you treat other humans in your debates.

FFS!

Enough with your pity party. I've answered at least two other posts of yours and your little emotional outbursts are pretty bad!

" I go to great lengths to explain myself and to back up my arguments. More so than most, if not all, other posters."

You put up a lot of information but once someone says something you don't like, you try your very best to discredit them and their position. You just went off on a woefully bad tangent and derailed yet another argument for your pity party.

"How many thousands of times have I called someone out on something and they run away and never address the issue? "

And how many times has someone (such as me) went into a thread, debated with you and you disappeared, not addressing the issues that came up? This site is not all about you

"The techdirt theme seems to be that if someone says something you like, they are of course correct, no matter if they don't back up anything that they're saying."

Karl has admitted errors. You fail to do so. He seems to be the bigger man at this current time. Grow up

"I've proved myself over and over and over, but you give me zero credibility."

Respect is not given, it's earned. You should know this. In order for a community to respect you, you should learn how to respect that community

"Can you guys really not stand it when someone believes something different than you?"

Dude, you're expressing yourself. But you need to learn the consequences of your own actions. If you act like a self centered jackass, expect people to tell you so. The debate was going quite well until Mike (very reasonably) asked you to clarify your position where you lost your damn mind. It's words and texts. Focus on the debate, not your ego

Re: Re: Righthaven

Because you have to possess the underlying exclusive right in order to show that you have been harmed as a result of the infringement. You are having a really tough time grasping the intent of the statute.

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But the 1976 act merely codified existing caselaw

Oh, that is very much not true at all. It was a new addition to copyright, and overturned previous case law.

I got the notion right from Silvers.

First, the Majority's attempt to distinguish Prather as predicated on the 1909 Act is unpersuasive, given that courts have recognized that “[i]n enacting § 501(b)'s standing provision, Congress ‘merely codified the case law that had developed [under the 1909 Act] with respect to the beneficial owner's standing to sue.’ ” Moran v. London Records, Ltd., 827 F.2d 180, 183 (7th Cir.1987) (internal citation omitted). See also Gardner, 279 F.3d at 778 (9th Cir.2002) (holding that a sublicensee of a copyright lacked standing to sue under the 1976 Act on the ground that the pre-1976 law so prohibited). Accord, H.R. 94-1476 at 47, reprinted in 1976 U.S.C.C.A.N. 5659, 5660 (“[t]he present copyright law, title 17 of the United States Code, is basically the same as the act of 1909.”).

In enacting § 501(b)'s standing provision, Congress “merely codified the case law that had developed [under the 1909 Copyright Act] with respect to the beneficial owner's standing to sue.” Cortner v. Israel, 732 F.2d 267, 271 (2d Cir.1984); see 3 M. Nimmer, Nimmer on Copyright, § 12.02, at 12-27 (1986) (§ 501(b) “follows the law established by the courts under the 1909 Act”).

Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven

Even if that were true, there was a magic moment when Righthaven was the owner and that is enough. You haven't cited any authority for the proposition that once an owner grants an exclusive license to someone else, that owner doesn't have standing to sue for past infringements. I don't think you'll find any authority that says this. I've looked.

Dude, I like these boards because I like the topics being discussed. My views are in the minority amongst the regulars. As soon as I say one thing that the herd doesn't agree with, I'm called all sorts of names and insulted in all sorts of ways. It's ridiculous and sad. I should be able to express my opinion without 20 people calling me an idiot and a troll. It's fucking ridiculous. That Mike fosters this environment says a lot about him.

Re: Re: Re: Righthaven

I think I do understand the intent of the statute. I'm having a hard time understanding how you think that a transferee of the right to sue shouldn't exercise that right. Why else would the law allow its transfer? So what if that transferee subsequently grants an exclusive license? You haven't cited any authority to back up your position here.

Re: FFS!

Try this out, Jay. Create a new account and post a few things the herd disagrees with, but do it nicely and state the reasoning behind your beliefs. Try that and see how much abuse you take because of it. It's not about earning respect, it's about a group of people who regularly post here who can't stand it when someone expresses a different point of view. It's about Mike's inability to set a good example and to foster an environment where issues can be debated in peace. It's really sad that he WANTS this place to be that way. Techdirt talks about important issues, issues that have good points on either side of the debate. But God forbid someone disagree with Mike's point of view. I've seen this before. I've noticed that the more "alternative" one's point of view is, the less open that person is to any contrary thinking. I love to have my beliefs challenged, and I love it when people challenge me with good arguments. A lot of that has happened in this very thread. But the Techdirt trolls are ruining this place, and they're making it into an echo chamber where only those who are preaching to the choir are respected. It's really sad that Mike's OK with this. I guess he likes his herd of followers who don't think too critically.

Re: Re: Re: Re: Re: Righthaven

Re: Re: Re: Re: Re: Re: Re: Re: Re:

I got the notion right from Silvers.

OK, perhaps I wasn't clear here... Yes, the right of a beneficial owner to sue for infringement had been granted in case law prior to the 1976 Act (even though it was not based on any statute at the time).

However, the divisibility of copyright ownership had not.

So, your quotes would be relevant if we were arguing about whether a beneficial owner had a right to sue. But we're not. We both agree that they can.

The issue is that you're claiming an exclusive license is not a transfer of legal ownership (you compared it to a "lease" in another thread). That is false, according to both statute and case law. And that is precisely what changed in the 1976 Act, at least as far as this debate goes.

Re: Righthaven

You seriously need to reconsider going into law because you can't comprehend the concept of authority. When 90% of people who know the law disagree with you, including distinguished judges and law professors, it is time to concede. Being irrationally stubborn is not a good quality for an advocate to have. I have already explained to you that when a transaction is a sham or effectuated for the sole purpose of evading the confines of a statute, the court can deny prudential standing. What Righthaven and SM have attempted to do is to trade in causes of action using a sham assignment. If there was nothing wrong with the SAA it would have been disclosed to defendants or incorporated into the assignments. But it wasn't. Which means even Rigthaven knew it was a problem.

I should be able to express my opinion without 20 people calling me an idiot and a troll. It's fucking ridiculous.

Give this childish footstomping a rest already.

1. The vast majority of people who engage with you have done so seriously and provided responses on the issues. You're the one who's constantly whining.

2. Yes, some people are giving you a hard time because you got this one so completely wrong and were so insistent that people who got it right were idiots last time around. I find it funny that you can't take it.

3. Yes, there are some people who say mean things online. You being one of them. In fact, you're worse than most. So stop making it out like your little miss sensitive.

It seems like every time there's a thread where you can't support your position, you start this footstomping thing. Stop it.

Re: Re: FFS!

Try this out, Jay. Create a new account and post a few things the herd disagrees with, but do it nicely and state the reasoning behind your beliefs. Try that and see how much abuse you take because of it. It's not about earning respect, it's about a group of people who regularly post here who can't stand it when someone expresses a different point of view.

There may be one or two people who jump to the early "troll" or "shill" claims, but they're vastly outnumbered by the people who do try to respond intelligently.

Seriously, focusing in on one or two bad seeds and making it like it's everyone is just wrong.

When new people show up and have serious points and support it, people here engage with them. When you first showed up, I engaged with you quite a bit, and most certainly did not call you names. At some point, you started calling me a "fucking asshole" a "freakshow" and other such stuff.

That was after some people backed up the reasoning why you were wrong. And you couldn't take it. There's a pattern here, and it's not that people here have created an echo chamber. People -- even regulars -- disagree with me all the time. Last week's Apple DUI story had a bunch of regulars disagreeing with me. The story about Duke Nukem had a bunch of regulars disagreeing with me. Some people on every post agree with me, some disagree. Sometimes discussions get heated, but that's the internet.

It's not all about you.

But God forbid someone disagree with Mike's point of view.

It happens all the time. This is no echo chamber. It happens on pretty much every post. And then people have a discussion about it. And yes, people get heated in their opinions. Stop it with the Southern Belle "oh my!" crap, like you've never had a discussion where people challenge you on stuff. It doesn't make you look good.

But the Techdirt trolls are ruining this place,

Ha! Thanks for a laugh.

I guess he likes his herd of followers who don't think too critically

Wasn't it this very thread where you said you were going to stop being an asshole?

Re: Re: Re: Re: Re: Re: Righthaven

Do you have any authority to support the proposition that a holder of an exclusive right can file suit after the right has been transferred to another party? I realize the right to sue may be retained but where does it say it can be exercised when the underlying exclusive right has been transferred?

Re: Re: Righthaven

You seriously need to reconsider going into law because you can't comprehend the concept of authority. . . .

And this is where I know we've gone way past the point of diminishing returns. Thanks for the insult.

I've already explained why I disagree. Guess what? People can disagree with you. That doesn't mean you're wrong or you're right. We simply disagree. You can't point to any case that proves you're right, and neither can I.

You clearly NEED for Righthaven to lose. I couldn't care either way. That tells me you're too biased here.

1. The vast majority of people who engage with you have done so seriously and provided responses on the issues. You're the one who's constantly whining.

Not true. I'm abused if I say one thing that the herd disagrees with. I'm abused even if I back up my assertion with reasons and authority. The abusers are never asked to back up their arguments. Are you pretending that your loyal core followers aren't extremely abusive to opposing points of view?

2. Yes, some people are giving you a hard time because you got this one so completely wrong and were so insistent that people who got it right were idiots last time around. I find it funny that you can't take it.

I'm not talking about this thread specifically. This thread's actually been unusually productive. If I'm wrong, I admit it. I think I'm right here. You disagree. So what?

3. Yes, there are some people who say mean things online. You being one of them. In fact, you're worse than most. So stop making it out like your little miss sensitive.

Absolute bullshit. Your core herd are far more abrasive with alarming regularity. Shame on you for fostering this environment.

It seems like every time there's a thread where you can't support your position, you start this footstomping thing. Stop it.

I love being proved wrong. It means I had something wrong and someone's corrected me. How about you give the whining about everything that has to do with IP a rest? How about you actually give unbiased analysis of an issue for a change and stop working backwards all the time? How about when I call you out for be completely wrong, which I've done numerous times, you admit that you were wrong.

Re: Re: Re: Re: Re: Re: Re: Righthaven

Do you have any authority to support the proposition that a holder of an exclusive right can file suit after the right has been transferred to another party? I realize the right to sue may be retained but where does it say it can be exercised when the underlying exclusive right has been transferred?

If by "abused" you mean challenged (sometimes with bad language), then sure. But that's not the definition of abused that anyone else seems to use.

And, seriously. you use much worse language on a regular basis than almost everyone who is challenging you.

Drop the little miss sensitive schtick.

Are you pretending that your loyal core followers aren't extremely abusive to opposing points of view?

As I said, there are lots of people who visit this site who have all different opinions. And if they disagree with what people have said, they'll challenge them. They'll challenge me as well. That's part of the discussion.

The only person who seems to get all worked up about being challenged is you.

And, honestly, for someone who has called me a "fucking asshole" multiple times as well as suggested that I am mentally handicapped, I find it laughable that you think others "abuse" you for challenging you and occasionally saying mean things.

Absolute bullshit. Your core herd are far more abrasive with alarming regularity. Shame on you for fostering this environment.

You have an amazing blindness for your own use of bad language. It's hilarious. Do you really want me to start pointing you to stuff that you've said about me specifically?

It's nothing compared to the "abuse" that you've taken. What "abuse"? Some people say you shouldn't be a lawyer? Honestly, given your temper tantrums, I think they have a point. That's not "abuse" that's career advice. Someone calling you a troll? Yeah, it's silly, but it's an internet forum. People call each other trolls all the time. You, in this very thread, called people who agree with me trolls.

That's not abuse. That's people disagreeing with you in the *same manner that you disagree with people*.

Why don't you guys give all the regulars who are complete fucking assholes every single day some gruff?

The regulars who are assholes all seem to be the ones disagreeing with me. Darryl, for instance, or the AC's who claim everyone here is "pro-piracy." Even then, I've stopped giving them "gruff," because it's simply not worth it. Some people just can't be reasoned with.

It really frees up my time. Perhaps you could follow suit? Just a suggestion.

Re: Re: Re: Righthaven

According to this theory 99% of people who have ever commented about this topic must be biased because they all want Righthaven to lose. You, on the other hand, insist on disagreeing with everyone but you are not biased. Okee dokee.

I know you don't see/won't acknowledge it/don't care, Mike. The fact is, you set the tone around here and you are the leader. You foster this environment.

Do you really want me to start pointing you to stuff that you've said about me specifically?

I'll start bookmarking all the times people call you out for being completely wrong where you don't admit it or you just run away and don't come back. That way, when you pull it this again, I'll pull out that. Sound good?

I know it's important for you to take me down a notch whenever you can. I'm flattered.

Well, one or both of those conditions were present in every single case law that has been brought up in this thread. If the Prather case had happened today, for example, Prather would be considered a beneficial owner.

But in all honesty, I don't know of case law, because I've never heard of this actually happening. It's simply not why people transfer copyrights, or bring lawsuits, in the real world.

Re: Re: Re: Re: Righthaven

OK, but they did own it once it was assigned to them. The subsequent exclusive license is only relevant if you can show that once an owner grants a license he can no longer bring an action for past infringements. Can you show that?

You keep missing the point on this, just as you miss the point everyone else is making on the thread. I don't care if people use tough language on you. I don't care if you use tough language on other people. I don't find it abusive.

Posting examples of people calling you names doesn't prove you point. It proves mine: which is that you're overreacting to people challenging you when you're just as bad back.

AJ, here's the thing: you're totally right. We abuse you. Because you ask for it constantly, and it's oh-so-much fun. You are the kid on the playground who tells people to be careful because he knows karate. You are the guy with a note that says "Kick Me" on his back. You waltz into this prison shower every day and immediately drop the soap. You are, in short, an easy target. You bring out the bully in us. And maybe it makes me an awful person, but I don't feel bad for you at all, because you are just so fucking annoying that I can't move myself to give a damn and am totally willing to make prison-rape jokes about you.

If you have an issue with the tone around here, there's something you yourself can do to fix it: go away.

Re: Re: Re: Re: Re: Re: Re: Re: Re: FFS!

It's hilarious. You've got all this time to attack me in this thread, but you can't take a minute to explain how the Third Circuit's reading is "tortured." Sure, Mike. It's because you don't have the time. LOL!

AJ, here's the thing: you're totally right. We abuse you. Because you ask for it constantly, and it's oh-so-much fun. You are the kid on the playground who tells people to be careful because he knows karate. You are the guy with a note that says "Kick Me" on his back. You waltz into this prison shower every day and immediately drop the soap. You are, in short, an easy target. You bring out the bully in us. And maybe it makes me an awful person, but I don't feel bad for you at all, because you are just so fucking annoying that I can't move myself to give a damn and am totally willing to make prison-rape jokes about you.

Careful now. I'm not sure his sarcasm/abuse sensors are properly calibrated, so you've now been added to his big list of "abusers," meaning that I'm a liar for saying there were only one or two. You make it three.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: FFS!

"Funny how you aren't addressing my points. You must be way too busy trying to take me down to admit you're wrong. I understand completely."

AJ/FB/AC: the problem is that you're so busy pretending yourself the victim of some broad "herd" here that you've missed the fact that not everyone in the "herd" agrees with each other, making them a herd not at all. Hell, I WRITE for this site occassionally, but I've been at odds with Mike and several other members of the community in the past.

The problem isn't language or opinions or anything like that. The issue is that you occasionally (not always) are shown to be demonstrably wrong, yet you rarely (but not never) just own up to it so we can all move on to the next topic. It's frankly sad, because when I've been wrong here and owned up to it, I've found the community to be very fair about it.

Look, you're obviously a smart guy, which is why it's so infuriating when you undermine your own credibility by not just raising your hand every once in a while and saying, "Look, I got this wrong. My bad." No one would think less of you for saying that when appropriate.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: FFS!

If I thought I had this Righthaven thing wrong, I'd gladly say so. So far, no one's convinced me that I'm wrong. Sure, the judge ruled differently than I see it. So what? Lots of judges make rulings that other people think are wrong.

I say I'm wrong all the time when I'm convinced I'm wrong. Mike, sadly, does not. I've seen him disappear from a debate where he's been proved to be wrong more times than I can count.

I don't do that. I stick around and make my arguments and demonstrate what I think and why I think it. Mike runs away like a little boy.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: FFS!

No, you stick around and keep saying the same things over and over again while completely ignoring anything anyone says in response. Mike saunters off when he's sick of dealing with you, I suspect (and who could blame him?)

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: FFS!

If someone pointed out something to me that proved Righthaven doesn't have standing, I'd change my position and admit that my prior view was wrong. So far no one's done that. I'm repeating myself over and over, yes. It's quite tiring. I think I've done a good job of explaining my point of view, as the others have done theirs. I think this thread's been productive for the most part.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

The Silvers passage would be even more relevant if it came from the Majority opinion.

When supporting any position by citing to a portion of case law other than a majority opinion, e.g., concurrence, plurality, and especially a dissent, it's prudent to make that fact known. In fact, it's deceitful to hide it.

Is anyone willing to give the AC the benefit of the doubt that it was an honest oversight?

Re: The Annotated A.J.

I have admitted I'm wrong many times. If someone's made a thread winning post proving that Righthaven didn't have standing, please point me to it. So far I've heard arguments that I don't find to be persuasive coming from people who desperately want Righthaven not to have standing. I've stated what I believe and why I believe. Can you address my arguments head on, or are you only good for saying "you're wrong" without saying why? I'm guessing it's the latter. That's not very convincing.

Re: Re: Re: Righthaven

I understand the difference. Stephens assigned the copyright to Righthaven, including the right to sue. Righthaven then granted Stephens a license. It's quite simple to me. Not sure why you think it's not. I've yet to see you cite any authority that suggests the assignee of a copyright including the right to sue doesn't have standing, notwithstanding a subsequent licensing. I've read every case on Westlaw that includes the terms "copyright, license, standing." I didn't see anything that supports a contrary view.

Re: Re: Re: Re: Righthaven

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

[i]The Silvers passage would be even more relevant if it came from the Majority opinion.

When supporting any position by citing to a portion of case law other than a majority opinion, e.g., concurrence, plurality, and especially a dissent, it's prudent to make that fact known. In fact, it's deceitful to hide it.

Is anyone willing to give the AC the benefit of the doubt that it was an honest oversight?[/i]

"I noted that I was quoting a dissenting opinion above. Sorry if I forgot to note that later. Can you show that the dissenting opinion I'm quoting is wrong? If not, it's not really relevant, is it?"

(Included original comment...)

THIS. Right here. This is why people find you annoying, sir. Nowhere in the comment you are responding to did he say that you were wrong. He was just pointing out why some people may have missed what you were going for. AND YOU ATTACK HIM. If you need any further help to understand why people here don't always give you respect, I cannot help you.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I forgot to mention that it was from the dissent. The fact that it's from the dissent seems irrelevant. Do you think it's relevant? If so, why? That quote was simply stating a fact, and it gave citations to back it up. I also included text from one of the sources being cited. In this particular case, why is the fact that it's from the dissent relevant? You haven't explained that, nor do I think you can. Should I have noted that it was from the dissent? Sure. Usually I'm careful to do that. I forgot to do that here. Big deal. You have yet to explain why it matters in the case. You think I should not be respected over this minor oversight? Give me a break. Why don't you explain why it matters, otherwise why should I respect you?

Re: Re: Re: Re: Righthaven

Stephens assigned the copyright to Righthaven, including the right to sue. Righthaven then granted Stephens a license.

Look, I know I'm beating a dead horse at this point. But from here on out, you have to at least acknowledge that you're the only one who views the case in this light.

Stephens did not "assign the copyright" to Righaven. That is clear from the SAA. But even if they did, it's misleading to say that Righthaven "granted Stephens a license." The accurate statement is "they transferred all rights back to Stephens."

All case law, even the case law you've quoted, backs this up. Nobody except Righthaven's lawyers believe they have standing to sue. The judge in this case called such claims "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful."

To quote Daniel Moynihan: "Everyone is entitled to his own opinion, but not his own facts." Whatever your opinion, you are factually wrong.

*Final thoughts*

This ENTIRE thread is about how you are acting like a child. You've detracted from the thread so greatly as to make this YOUR center of attention where not only do you attack Mike, but do not adhere to ANY advice given by myself, Marcus, DH, or Mike. I'm not here to convince you of anything on Righthaven. This entire thing was about YOUR bad behavior and you ignore that to go on some small tirade about how you weren't wrong.

Karl was right about this subject. The judge agreed. You're too mired in the minutiae of your own argument to see that. I'm not all too interested in the argument because you'll argue it into the ground as always, to the point that it doesn't matter what anyone else says.

The spirit of the law tells me that Righthaven was a copyright sham, only wanting to use copyright to sue people and make money. I wish we could electrocute them for their copyright bullying. (/s) Regardless if you want to keep up your tantrum and add this to "the list", be my guest.

But also add the "Constructive Criticism" post to the list. And look in a mirror. It's not anyone else's problem that you act the way you do. If you say you want to do better at debating, it may be that you need to treat others the way you want to be treated. You sure as hell use a lot of ridicule. Don't get upset when people give it back to you.

Re: Re: Re: Re: Re:

Hey, stop with the slimey lawyer tricks of focusing attention on nitpickin detail. You're ignoring the important part - the spirit of the law. This was so obviously being broken that the judge had to find something legal to use.

Whether you nitpick the details or not, if you have an ounce of humanity in you, then you'll agree that the outcome was the right one.